Hennessy v. Murdock — 43 N.Y. St. Rep. 748

Majority

p. 748

Catherine A. Hennessy, Pl’ff, v. Archibald R. Murdock, Def’t.

(Supreme Court, General Term, Fifth Department,

Filed January 22, 1892.)

Headnote

Easement—Lane—Abandonment.

Where abutting owners who enjoy equally the right of an intervening private lane erect a fence in the center thereof, thus enclosing each his proportionate share thereof, this constitutes an abandonment of the lane, and the right to the use of the lane cannot be revived by any subsequent owner of the abutting premises.

p. 749

Motion by the plaintiff for a new trial on exceptions taken at the Cayuga circuit, May 12, 1891, and ordered to be heard at the general term in the first instance, after a nonsuit directed by the court at the close of the plaintiff’s evidence in chief.

Teller & Hotchkiss, for pl’ff; Lyon & Pierce, for def’t.

action was originally brought in the city-court of the city of Auburn to recover damages for an alleged trespass. The defendant there interposed an answer alleging that the title to real estate would come in question upon the trial, and accordingly the case was removed to the supreme court under the .statute. In this court' the demand for recovery is in the sum of .$500, for an alleged trespass committed on or about the 7th. day of June, 1890, by breaking and entering the lands and premises •of the plaintiff, and there and without permission of the plaintiff -erecting a fence on said land, and disturbing the plaintiff in the use and occupation of the lands, a particular description of which .is set forth in the complaint. The locus in quo was a lane sixteen feet wide, running between lots 15 and 16, which abut on Washington street, in the city of Auburn, thence running westward toward Jefferson street.

That this lane once existed for the use of the owners on either ■side of it admits of no doubt, although it was never a public thoroughfare, or Used by the public, or accepted as a street by the city authorities. If, however, this lane .had been closed before the plaintiff received her deed, and if the deed to her does not -cover the land generally occupied by the lane, we are unable to •.see how an action of this kind will lie in her behalf.

The evidence is entirely consistent throughout to the effect, that upwards of twenty-two years ago the lane was practically abandoned by the abutting owners who divided the land among ■themselves by fencing in portions thereof, and building line fences in the center from the rear .of defendant’s lot to Jefferson ¡street. Subsequently, by the acts of owners, the lane was closed .at the Washington end of it In April, 1881, the premises now •owned by the plaintiff were conveyed to one Maria L. Irish. At this time there was. nothing to indicate that any lane had ever existed between these lands (now those of the plaintiff and of the defendant), or that the space actually occupied as a lane did not belong to and form a part of each of' these lots. In the deed to Maria L. Irish no reference is made to the existence of a lane. The conveyance made to the plaintiff was executed on the 6th •day of August, 1889, by the then owner, one William O’Neil, "the boundaries being stated as follows: “And being a part of lot :No. 16 on a map made by James T. Smith and filed in the Cayuga county clerk’s office April 24, 1835, beginning at a point in the west line of Washington street and at the northeast corner of said lot No. 16; thence westerly along the north line of said Iofc No. 16 two chains,” and so on by metes and bounds particularly •specified, to the place of beginning. Such also was the description in the deed from Maria L. Irish to the plaintiff’s grantor. (O’Neil.

p. 750

Under these facts it seems quite clear that Hosmer, while owner of the premises under deed dated December 20, 1865, intended to» and did actually abandon any and all easements that he, as the? owner at the time of., this portion of lot 16, might have enforced! in respect to this lane. There can hardly be any more conclusive evidence of the intention of the abutting owners who enjoy equally the right of an intervening lane to abandon the lane than by erecting a fence in the center thereof, and thus enclosing each his proportionate share-thereof. If this is once done, as it seems, to have been done under-the evidence before us, the right to the use of the lane cannot be revived by any subsequent owner o£ the abutting'premises. Snell v. Levitt, 110 N.Y., 595 ; 18 St. Rep.,. 611 ; Crain v. Fox, 16 Barb., 184 ; Corning v. Gould, 16 Wend., 531 .

The direction, therefore, of the nonsuit made by the circuit, appears to be correct, and the motion for a new trial should be? denied. • ...

Motion for a new trial denied, with costs.

Dwight, P. J., and Lewis, J., concur.